Originally published on Legal Planet. Reprinted with permission.
Now that President Trump has belatedly declared a national emergency, what powers does he have to respond to the coronavirus pandemic? There has been a lot of talk about this on the Internet, some of it off-base.
It's important to get the law straight. For instance, there's been talk about whether Trump should impose a national curfew, but I haven't been able to find any legal authority for doing that so far. The legal discussion of this issue is still at an early stage, but here are some of the major sources of power and how they might play out.
The Stafford Act (major disasters and national emergencies). Trump has specifically invoked the emergency provisions of the Stafford Act. The Stafford Act, which is mostly administered by FEMA, covers federal responses for two categories of events: major disasters and national emergencies. As the Congressional Research Service (CRS) has explained, declaring a major disaster unlocks greater powers than declaring a national emergency under this act.
A major disaster authorizes the government to distribute supplies and emergency assistance, unemployment assistance, emergency grants to assist low-income migrant and seasonal farmworkers, food coupons and distribution, relocation assistance, community disaster loans, and emergency public transportation.
In contrast, CRS says a national emergency "would not authorize grants, unemployment assistance, food coupons, crisis counseling assistance and training, or community disaster loans as would be available through a major disaster declaration." However, it would authorize "technical and advisory assistance to affected state and local governments for certain needs…and assistance in the distribution of medicine, food, and other consumable supplies."
It's not clear whether a pandemic would qualify as a major disaster. The statutory definition of disaster speaks of any natural catastrophe "including" a long list of things like earthquakes, tornadoes, droughts, and explosions, all of which seem very different than a disease. So the question would be whether "natural catastrophe" is by implication limited to these kinds of physical threats. There's some ambiguity here. However, I suspect that a court would be very unwilling to get in the president's way in using disaster authority to respond to the pandemic.
National Emergency Act. I wrote a lengthy post a year ago about whether climate change would qualify as a national emergency under this act, and if so, what powers doing so would release. There's no question that a pandemic qualifies as a national emergency, and Trump has already made use of this authority. Making such a declaration triggers scores of statutory provisions authorizing emergency action by the president.
The Brennan Center has a list of 136 federal statutes that can be used once a national emergency is declared. One clear use would be to prioritize production of medical supplies needed to deal with the pandemic. The government would also be authorized to allow the use of drugs that haven't been approved by the FDA, which might conceivably speed things up if we ever get promising antivirals or vaccines. Much of the list of 136 statutes seems irrelevant (such as provisions relating to military staffing), but there may be a few other useful powers tucked away here or there.
Disease-related laws. The CDC website has a list of powers to deal with contagious diseases. Beyond the ones listed here, the main one seems to be the power to issue regulations to prevent disease transmission from foreign countries or between states. It provides:
The Surgeon General, with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.
Another subsection indicates that the powers to block travel are limited under this provision. In regard to people moving between states, the statute provides that they can be required to submit to an examination if they are reasonably believed to be infected. But they can be detained only if they are actually found to be infected and potentially contagious. In other words, this is a catch-and-release policy, except that people who are infected can be quarantined. So unlike travel from foreign countries, the president can't impose any blanket travel bans between states. The statute is oriented toward identifying individual carriers, not toward dealing with mass movement during a pandemic.
Inherent Constitutional Powers. The courts have sometimes allowed the president to take emergency actions without any direct authority from Congress. The law in this area is murky. Emergency action without congressional authorization seems most likely to be upheld if the president is acting to protect the federal government itself from threats or when there's a history of Congress approving similar previous actions. The Supreme Court has indicated that these actions are least likely to be approved when Congress has frowned on them, either implicitly or by prohibiting them outright.
For a president to take action on this basis would be a last resort, at least if the president's lawyers or the courts have anything to say about it. There aren't any clear answers here, and the result could turn on the direness of the situation and the compelling need for the actions taken by the president.
Two takeaways: Yes, the president does have genuine powers to act in an emergency like this epidemic. No, those powers aren't unlimited. They don't provide a substitute for vigorous action by state and local governments.
Showing 2,830 results
Daniel Farber | March 18, 2020
Now that President Trump has belatedly declared a national emergency, what powers does he have to respond to the coronavirus pandemic? There has been a lot of talk about this on the Internet, some of it off-base. It's important to get the law straight. For instance, there's been talk about whether Trump should impose a national curfew, but I haven't been able to find any legal authority for doing that so far. The legal discussion of this issue is still at an early stage, but here are some of the major sources of power and how they might play out.
Karen Sokol | March 16, 2020
"This report is a catalogue of weather in 2019 made more extreme by climate change, and the human misery that went with it." That is the statement of Brian Hoskins, chair of Imperial College in London's Grantham Institute for Climate Change, about the recently released State of the Climate in 2019 by the World Meteorological Organization (WMO). Like the Intergovernmental Panel on Climate Change (IPCC), the WMO compiles information from scientists all over the world that has been a key driver of international climate law and policymaking. One of the IPCC's reports was similarly dire to that of the WMO's, but not without hope.
Darya Minovi | March 12, 2020
On March 4, I joined community members and advocates from Assateague Coastal Trust, Center for a Livable Future, Environmental Integrity Project, Food and Water Watch, and NAACP to testify in favor of Maryland's House Bill 1312. The bill, introduced by Delegate Vaughn Stewart (D-Montgomery County), would place a moratorium on permits for new or expanding concentrated animal feed operations (CAFOs) in the state. The legislation would apply to "industrial poultry operations," defined as operations that produce 300,000 or more broiler chickens per year. It was introduced with strong support from community members and environmental and public health advocates hoping to pump the brakes on the seemingly unmitigated growth of poultry CAFOs, especially on the Eastern Shore.
Christine Klein, Sandra Zellmer | March 11, 2020
The flood season is upon us once again. Beginning in February, parts of Mississippi and Tennessee were deluged by floods described as "historic," "unprecedented," even "Shakespearean." At the same time, Midwestern farmers are still reeling from the torrential rains of 2019 that destroyed billions of dollars' worth of crops and equipment, while wondering whether their water-ravaged farmland can ever be put back into production. All this while the Houston area continues to recover from three so-called "500-year floods" in as many years, back-to-back in 2015, 2016, and, most notably, Hurricane Harvey in 2017.
Matt Shudtz | March 5, 2020
From the farm fields of California to the low-lying neighborhoods along the shores of the Chesapeake Bay, structural racism and legally sanctioned inequities are combining with the effects of the climate crisis to put people in danger. The danger is manifest in heat stroke suffered by migrant farmworkers and failing sewer systems that back up into homes in formerly redlined neighborhoods. Fortunately, public interest attorneys across the country are attuned to these problems and are finding ways to use the law to force employers and polluters to adapt to the realities of the climate crisis.
John Leshy | March 5, 2020
With the help of the U.S. Congress, the U.S. Department of the Interior (DOI) has had a long and proud history of tackling pressing challenges through responsible and inclusive management of America's public lands. One might expect it would continue that tradition as climate change has become a major challenge confronting the nation. Not so. In fact, Secretary of the Interior David Bernhardt has been doing more than any of his predecessors to promote fossil fuel development on America's public lands, all the while dancing around the issue of whether he has an obligation, or even the legal authority, to address climate change.
Karen Sokol | March 2, 2020
Earlier this year, on the heels of the Earth's hottest decade on record, a coalition of former government officials, fossil fuel companies, car manufacturers, financial companies, and nonprofit organizations renewed their endorsement of a national carbon tax as "the most effective climate solution" (emphasis added). And by "the," it appears that they mean "the only." The catch is that the coalition's legislative plan also calls for preventing the federal government from regulating carbon emissions and from taking any other protective measures "that are no longer necessary upon the enactment of a rising carbon fee." Given the scale and complexity of the planetary emergency that we face, it would certainly be nice if the solution were that simple. But that, of course, is too good to be true.
David Driesen | February 27, 2020
On March 3, the Supreme Court will hear a plea to invent a new rule of constitutional law with the potential to put an end to the republic the Constitution established, if not under President Trump, then under some despotic successor. This rule would end statutory protections for independent government officials resisting a president’s efforts to use his power to demolish political opposition and protect his party’s supporters. Elected strongmen around the world have put rules in place allowing them to fire government officials for political reasons and used them to destroy constitutional democracy and substitute authoritarianism. But these authoritarians never had the audacity to ask unelected judges to write such rules, securing their enactment instead through parliamentary acts or a referendum.
Noah Sachs | February 26, 2020
Environmental groups faced a skeptical bench during Monday's argument in two consolidated cases, U.S. Forest Service v. Cowpasture River Preservation Association and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association, as they fought to preserve a 2018 decision from the U.S. Court of Appeals for the 4th Circuit that had halted an $8 billion, 600-mile natural gas pipeline. At the heart of the dispute is a 2017 permit granted by the U.S. Forest Service to allow the Atlantic Coast Pipeline to cross the George Washington National Forest.